DATE: 20060922

DOCKET: C42439

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) - and – FITZROY HANSON (Appellant)

BEFORE:

ROSENBERG, MACPHERSON AND GILLESE JJ.A.

COUNSEL:

Leslie Maunder

for the appellant

Elise Nakelsky

for the Crown respondent

HEARD & RELEASED ORALLY:

September 13, 2006

On appeal from the order of Justice Gerald F. Day of the Summary Conviction Appeal Court (Superior Court of Justice) dated September 3, 2004, allowing an appeal from the order of Justice John Kerr dated October 17, 2003 dismissing the charges against the appellant.

E N D O R S E M E N T

[1] In our view, this appeal must be allowed. The summary conviction appeal court judge allowed the Crown appeal on the basis the trial judge’s reasons did not meet the requirements set out in R. v. Sheppard (2002), 2002 SCC 26, 162 C.C.C. (3d) 298. He held that the reasons did not allow for meaningful appellate review. We do not agree.

[2] The central feature in this case was the reason for the stop. When the reasons of the trial judge and the dialogue between counsel and the trial judge are reviewed, it is apparent why the trial judge held that the stop was arbitrary. He accepted the appellant’s evidence and, on that evidence, there was no reason for the stop and certainly no legitimate reason related to driving. He also rejected the officer’s testimony as to why he stopped the car. He thus rejected the officer’s evidence that he stopped the car for suspected impaired driving. Rather, he found that the officer must have stopped the appellant for some other reason for which there was no lawful basis. That was a sufficient basis for a finding of a breach of s. 9 of the Charter. The Crown had not contended that the evidence should not be excluded if the s. 9 violation was made out. The reasons thus meet the standard set out in Sheppard at paragraph 55:

The trial judge’s duty is satisfied by reasons which are sufficient to serve the purpose for which the duty is imposed, i.e., a decision which, having regard to the particular circumstances of the case, is reasonably intelligible to the parties and provides the basis for meaningful appellate review of the correctness of the trial judge’s decision.

[3] In his reasons, the trial judge identified the only serious issue. He resolved that issue and explained, albeit in somewhat circumspect language, why he made the findings that he did. As the Supreme Court of Canada held in R. v. G. (L.) ( 2006), 2006 SCC 17, 207 C.C.C. (3d) 353 at para. 23:

The requirement for sufficient reasons is not an invitation to an appellate court to substitute its perceptions of what should have been the factual and credibility findings of the trial judge when a reasonable basis for the trial judge’s conclusions exists.

[4] Contrary to the apparent finding of the appeal judge, this was not a case of troublesome principles of unsettled law nor was the evidence confusing. While there was contradictory evidence, the trial judge resolved enough of those contradictions to allow for a meaningful review.

[5] Accordingly, leave to appeal is granted, the appeal is allowed and the order dismissing the charges is restored.

Signed: “M. Rosenberg J.A.”

“J.C. MacPherson J.A.”

“E.E. Gillese J.A.”